Religion and Human Rights (34): What Happens When You Want to Make Politics and the World More Religious?

You’ve probably guessed from the title where this post is heading, so in order to avoid the obvious misunderstandings I’ll reiterate my basic position on the role of religion in contemporary society: I’m an agnostic, but I fully understand the importance of religion for religious people; I believe that part of the function of human rights is to protect those people, and that another part of that function is to protect the rest of us against them; yet I don’t believe some of the overblown but unfortunately very fashionable statements about the extent of the religious threat to society; and neither do I believe that principles such as the separation of church and state imply religion should have no voice at all in democratic politics.

So, now that this is out of the way, let me try to answer the question in the title. The answer will be predictable, but perhaps also somewhat illuminating in the details.

In modern-day democracies, rulers no longer claim a divine right to rule and most of them admit that they don’t have the authority to further the cause of God on earth by violent and coercive means. They can speak and persuade, but wars against against foreign sinners and oppression of domestic heretics is not done. However, the word “most” does a lot of work here. Many democratic politicians, backed by their religious supporters, still try to shape politics and the law according to religion and try to use those earthly powers as means to make the world more religious. That’s fully consistent with the universalist claims inherent in their religious beliefs: their God isn’t just their God but the God of all humanity, and all of humanity has a duty to obey the word of God. If this obedience can be promoted through the use of politics and the law, then religious citizens have a religious duty to try. Their attempts typically follow a number of steps:

1. Demand religious freedom

They start of from the very reasonable claim that they themselves have a right to live their own lives according to their religious faith, unmolested by the state or by other citizens. The first of their religious duties is to obey the word of God themselves, and they should be allowed by the state and the law to do so. That is indeed their human right and they are entirely justified in using politics and the law to protect that right.

2. Demand religious exemptions

However, some religious people interpret this right to religious freedom in a rather loose way. For example, they see this right not merely as a means to fend off anti-religious and hostile legislation or other forms of state action intentionally interfering with their religion (or hostile private action for that matter). They see their right to religious liberty also as a right to disrespect general and non-religiously motivated legislation which they believe violates the word of God.

For example, a law imposing a military draft may be seen as illegitimate by the adherents of a pacifist religion, and a law requiring the use of crash helmets should not be forced upon the followers of a religion that demands the wearing of turbans. Hence, religious people often demand that they should be exempted from the application of certain laws – or at least their right to conscientious objection should be respected – when they view those laws as being against the word of God.

I’ve argued elsewhere that such exemptions – which take us one step further than simple religious liberty – can be justified in some cases, but that we should be careful not to undermine the rule of law.

3. Demand religious laws

Some want to go even further than that. From the point of view of a religious person, the two previous demands on politics and the law were strictly self-regarding: religious people should be allowed to live their own lives according to their own beliefs. However, as I stated above, religion is hardly ever purely self-regarding. Most religious people feel a strong urge to work for the salvation of their fellow human beings. Hence, instead of demanding personal exemptions from laws that inadvertently violate the requirements of their religion, some religious people want to abolish the laws in question and replace them with laws that better promote those requirements.

If we take the same example as above, they may want to abolish the law imposing a military draft, rather than just asking for a personal exemption. Their religion requires not just that they personally refrain from violence, but that humanity does so as well. Hence they would like to end the military altogether rather than just their personal participation in it.

Or take the more salient example of laws permitting same-sex marriages. Many religious citizens claim a right to abolish such laws. Their religion doesn’t permit what these laws permit. And even if they have received a personal exemption so that the laws don’t force them to act against their religion (same-sex marriage laws don’t force people into a same-sex marriage, nor do they force people to validate and recognize the same-sex marriages of others), laws such as these do make it possible for other people to act against the word of God. Hence, some religious people want the abolition of such laws, thereby saving people in the eyes of God. However, the implication is that people’s rights are violated by the religiously inspired removal of laws that guaranteed people’s rights. Maybe religious people want to claim that this is the price to pay for the preservation of their right to religious liberty, but I fail to see how people’s religious liberty is violated by the self-regarding actions of others. (More on the relationship between religious liberty and same-sex marriage is here).

4. Demand religious laws that violate human rights

Now, it’s perfectly OK for religious people to try to move the law in a certain direction, just as it is OK for other people to try to move the law in their preferred direction. I don’t buy the theory that says that in a diverse and tolerant modern democracy religious people should refrain from using religious reasons for legislation or the reform of legislation (sometimes called the Doctrine of Religious Restraint). Religious people are allowed to work against what they see as anti-religious laws and also to promote religiously inspired laws, on the condition that the laws we end up with have managed to convince a majority and do not violate the rights of others (see here for a detailed version of this argument).

For example, a law abolishing the draft or the military could be a religiously inspired law (although it can simultaneously be inspired by secular reasons), but it could also be acceptable when it’s clear that it doesn’t violate anyone’s human rights, e.g. assuming there is no military or terrorist threat. When there is such a threat the law could lead to rights violations and hence should be resisted. Things are clearer in the case of a religiously inspired law outlawing same-sex-marriage. Such a law should always be resisted since people have a human right to get married. The same is true for blasphemy laws and a whole range of other religiously inspired laws.

The efforts by religious people to make politics, the law and the world more religious go too far when those efforts include legislation

  1. that makes non-religious people or people adhering to another religion live according to the precepts of the legislator’s religion, and
  2. that violates the human rights of some.

Those efforts are understandable from the point of view of the religious legislators, since their religion requires them to work for the salvation of everyone, but they are not acceptable.

5. The ultimate step

So there’s an increasing intensity in the demands to make politics, the law and the world more religious: the law should not intervene with religion; then the law should be more considerate of religion and provide exemptions; then it should promote religion; and then it should promote religion even if that means violating the human rights of some. If, however, there is something blocking this increasingly intensive intervention and the law and politics do not cooperate sufficiently, some religious people will take matters into their own hands. After all, one can’t accept that the word of God is trumped by an anti-religious democratic majority or by a religious law that isn’t sufficiently respected. Direct action to make the world more religious is then required. You may then see someone attacking a Danish cartoonist for being blasphemous. Or someone else killing abortion doctors. Fortunately, very few religious people go all the way, which is the reason for the optimism I expressed at the beginning of this post.

Should we conclude from this that it’s best to keep religion as far away as possible from politics and the law? I don’t think so. As long as religious people respect human rights they can do as they please. Given the importance of religion to many of us, it’s illusory in the best case and counterproductive in the worst case to try to artificially ban religion from politics and the law.

Other posts in this series are here.

Discrimination (16): When Is It OK to Discriminate?

Discrimination is generally blameworthy and therefore often illegal as well. However, there are situations in which it’s acceptable to discriminate and unacceptable to legislate against discrimination. I’m not referring to rules that apply unequally to different people in order to produce a more equal outcome, such as rules regarding affirmative action (which are sometimes claimed to be a form of positive discrimination); nor am I referring to rules regarding different height requirements for male and female candidate police officers. These are two examples of rules that discriminate in order to make outcomes more equal, and they can therefore, paradoxically, be seen as anti-discriminatory. Conversely, rules that apply equally to all can have a “disparate impact“: e.g. one uniform and “neutral” height requirement for police officers would mean that fewer women will be allowed in the police force and would therefore have a discriminatory impact on women. Even if such rules are not intended to discriminate against women, they obviously do. (I’ll come back to intent in discrimination at the end of this post).

So, I’m thinking about rules like those, or rules that not only have unequal outcomes but also apply unequally (take the rules against gay marriage for instance). Can some such rules, which clearly discriminate some groups of people (given a certain understanding of discrimination), ever be justified?

I think they can. Discrimination can be unobjectionable if the benefits outweigh the harm done by discrimination. “Benefits” meaning not the benefits from the discriminator’s point of view, since those always, by definition, outweigh the harms for others – that’s the point of discrimination. We have to look at the benefits generally speaking, from a neutral point of view. For example, the safety of airline passengers and hence their rights to life and physical security outweigh the discrimination imposed on people who are not allowed to be pilots because of their bad eyesight. Another example: the importance of a good education for our children outweighs the discrimination imposed on people who want to be teachers but don’t have the qualifications. Discrimination of people with a physical disability or intellectual deficiencies is acceptable and even beneficial in these cases, not because those who can become pilots and teachers benefit from the exclusion of rivals, but because society as a whole benefits, and because this benefit outweighs the harm done to those excluded.

The downside of the consequentialist balancing inherent in these examples is that it is seldom clear what the exact harms and benefits of discrimination are. After all, every historical instance of discrimination was once defended on the basis of its beneficial consequences: equal voting rights for women was supposed to lead to irrational politics; legalization of homosexuality would lead to immorality; miscegenation would lead to the downfall of the white race etc. However, these examples don’t prove that there can’t be any forms of discrimination that can have some real and overriding benefits, and in fact we daily assume that they have: we give good teachers a job as a teacher, we give talented people higher wages etc. because we believe that society as a whole benefits from this.

Maybe we shouldn’t talk about discrimination in cases of acceptable and beneficial discrimination. I argued here that we should probably limit the concept to those cases in which the equal rights of those who are discriminated are violated and, more specifically, are violated for no other reason than their membership of a socially salient group. The would-be pilots and teachers in the examples above don’t have an equal right to be pilots or teachers or to any other specific job. There is no such right. There is a general right to work, but that right isn’t violated since people with bad eyesight or without the qualifications to become good teachers have ample opportunities to find a job elsewhere (under normal economic conditions).

Also the second condition for discrimination is absent in these examples: the people in question are certainly not part of socially salient groups (which is another way of saying that people with bad eyesight or without the qualifications to become good teachers are not regularly put at a disadvantage in society). Hence they are not discriminated when they are excluded from certain jobs on the basis of qualifications.

If, however, the would-be pilots and teachers were black – and therefore part of a socially salient group – and if they were excluded for no other reason than their skin color, and if this exclusion would violate their right to work (or any other right), then there would be discrimination. Their exclusion would violate their right to work when they regularly face this kind of exclusion, not when that sort of things happens only exceptionally and when they therefore have ample opportunities elsewhere.

This last point about alternative opportunities is crucial. Single instances of discrimination usually don’t violate people’s rights and therefore aren’t really discrimination according to the definition given here. Discrimination requires violations of people’s rights and violations based on people’s membership in socially salient groups. And violations of rights imply the absence of alternative opportunities  (I once gave the example of one lonely restaurant owner refusing to serve blacks, or the isolated landlord refusing to rent a house to Italian immigrants).

In this older post I argued that forcing some people to stop discriminating would violate their rights, such as their right to free association, to property, to religion etc. and that it can only be acceptable to force them to stop if the discrimination they inflict is so widespread and historically deep that it limits the rights and options of the targets of discrimination.

Nevertheless, this rule still leaves us with a few hard cases. The rights of discriminators may still receive priority even when the discrimination does severely limit the options and rights of target groups. Suppose there’s a general disapproval to marry “outside of one’s race” among the majority white population in a society. Most of us would not want legislation against this kind of discrimination because that would drastically limit the right to marry of the discriminators. Discrimination here severely impacts the choices and opportunities of non-whites, and yet seems acceptable. The whites in question may be immoral and repugnant, but this doesn’t render their rights null and void and doesn’t justify legislation prohibiting an exclusive preference for white husbands and wives. The reason, I think, is that it’s very difficult to do something about the actions of the whites. You can force people to hire blacks, serve them in your restaurant, admit them in your school etc. But you can’t force people to marry someone. So, the system I set up here to separate cases of discrimination from other cases isn’t perfect. It won’t solve some hard cases, but maybe those can never be solved.

A final word about intent. There’s no mention of intent in the definition of discrimination given here. That means that rules with a disparate impact can be cases of wrongful discrimination even if there is no intent to discriminate. Take again the case of height requirements for police officers: a single height requirement for both genders is not necessarily discriminatory, but when it is part of a wider social pattern of gender inequality, then it may violate women’s equal rights because the total set of gender biased rules makes it difficult for women to have ample employment opportunities elsewhere. Women are then a socially salient group. Intent is irrelevant here. Even if the height requirement is motivated by efficiency reasons, it contributes to discrimination and rights violations. The goal of anti-discrimination is equal protection of rights, whatever the causes of rights violations.

Now, imagine the height requirement isn’t part of a wider pattern of gender inequality. In that case, women have ample opportunities elsewhere and their equal right to work is therefore not violated. Hence there is no discrimination.

What is Democracy? (64): Plutocracy?

The role of money in democracy is hotly contested. It’s undeniable that democracies spend a lot of money on campaigns, advertising, lobbying etc. Some argue that wealthy individuals or corporations often use their financial means to distort the outcomes of elections or the framing of policy and legislation. There may also be a problem of vote buying: wealthy individuals or politicians paying voters or giving them some other advantages (such as jobs or cheap housing) in an effort to convince them to vote in a certain way. Worries about the effect of income inequality on democracy are partly based on this type of argument, as are efforts to regulate campaign financing.

And indeed, the huge amounts of money going around in democratic politics could potentially move us away of the democratic ideal of equal influence. So the charge of plutocracy isn’t necessarily ridiculous. However, this is essentially an empirical matter and we should therefore look at evidence from political science. Here’s a short and somewhat depressing overview:

With regard to overall spending, Jacobson (1978) was the first to show an effect on vote outcomes, but this effect was mainly present for challengers [in U.S. Congressional elections]. In subsequent years, the effect of challenger spending was confirmed, but others also found effects for incumbent spending as well (e.g. Green & Krasno 1988, Erikson & Palfrey 1995, Gerber 1998). The basic takeaway is that spending more is clearly effective for challengers, and probably also matters for incumbents too, but solving the causal direction problems involved makes it very difficult to be really certain of any of these findings.

One problem is we know that winning candidates generally have more money, but whether money helps candidates or is just a signal of unobserved candidate quality [i.e., people give more money to better candidates] is unclear. Another problem is that not only are donors attracted to high-quality candidates just as voters are, but they are also attracted to winning candidates—that is, if money is given in order to get access to elected officials, donors are more likely to give to candidates who are expected to do well, because the expected return is greater. In both cases, we could observe an empirical relationship between winning and having more money for your campaign, without the money actually “causing” the victory. (source)

So, maybe the “plutocrats” can’t just simply spend in order to have their preferred candidate elected and instead spend money on the candidate who is good and who will win anyway. However, the fact remains that their spending gives them privileged access to politicians and possibly also privileged influence on subsequent policy, and that isn’t something we want in a democracy. If “winning candidates generally have more money” – whether the money causes the win or not – one can reasonably assume that the candidates will in some way be indebted to or influenced by their donors. Also, even if there are doubts about the causal direction, it is worrying that the evidence doesn’t rule out the possibility that campaign spending – especially spending by challengers – can determine who gets elected.

Regarding deterrence – successful fundraising by incumbents deterring challengers from entering a race – the empirical evidence is weak:

there is no consensus in the literature regarding deterrence, and once again there are major questions about causal relationships (i.e., do high-raising incumbents deter, or is it just high-quality incumbents who can raise a great deal of money and simultaneously deter quality challengers for reasons having nothing to do with funding?). (source)

Whatever the evidence on deterrence, it’s clear that money determines who can run. It’s naive to think that a candidate with few means would be able to run against another having a lot of means. The former would simply be invisible, even if he or she feels undeterred.

What about campaign advertising, one of the more visible ways in which money could play a part in politics?

[A]ds appear to be somewhat effective but have wide variance in their effectiveness (that is, some ads help a lot, most help very little or not at all, and a few are counterproductive). (source)

Voter mobilization – face-to-face canvassing, mailings, phone calls – is also very expensive, hence well-funded candidates can do more of it. Whether they in fact do more of it depends on its effectiveness:

mobilization efforts appear to be effective but costly (face-to-face canvassing appears most effective by far, while phone calls & direct mail have much less effect). (source)

The conclusion is that campaign spending is somewhat effective, and that those candidates with more money do somewhat better. This results in a financial arms race between candidates, increasing the risk of donor indebtedness and of unequal access and influence:

Candidates who raise a lot of money tend to do better, and it’s more likely than not that at least part of this relationship is due to money paying for things like ads and canvassers that help candidates win over new voters and/or turn out their bases. (source)

Vote buying is the other channel through which money could potentially influence democratic politics. Here, some of the evidence is more encouraging:

The experiment took place during the March 2011 elections in Benin and involved 150 randomly selected villages. The treatment group had town hall meetings where voters deliberated over their candidate’s electoral platforms with no cash distribution. The control group had the standard campaign, i.e. one-way communication of the candidate’s platform by himself or his local broker, followed (most of the time) by cash distribution.

We find that the treatment has a positive effect on turnout. In addition, using village level election returns, we find no significant difference in electoral support for the experimental candidate between treatment and control villages.

…the positive treatment effect is driven in large part by active information sharing by those who attended the meetings. (source)

In conclusion: democracy is not simply a market transaction, but neither is it silly to worry about the role of money in elections and legislation.

More on money in politics here. More posts in this series are here.

Human Rights Promotion (9): Most Urgent Human Rights Policies

If you’re a political leader, a church leader or anyone else with the ability and willingness to change some people’s behavior and promote respect for human rights – to some extent that includes all of us – what should be your policy priorities? On which human rights violations should you focus? Ideally, you would like to be told something more specific than “reduce suffering and violence and enhance liberty and equality”. So here’s my attempt at something specific.

I’ll list a few domains that require urgent action. Not all of these domains are equally amenable to action, because there may be strong resistance in some quarters. Nevertheless, I consider all these domains to be equally important. I’ll list them first (and include links to older posts arguing why action is important) and afterwards distinguish between those domains where immediate progress is realistic and where it’s not. Of course, it’s not because progress isn’t realistic that we should remain passive.

  1. Promote free trade. Standard arguments for protectionism sound a lot like the Count complaining that there are beggars at the door. Protectionism may even harm citizens of the protecting country. It certainly harms producers in poorer countries. More here.
  2. Abolish capital punishment and reduce incarceration rates. Capital punishment doesn’t deliver on its promises, and even if it did it wouldn’t be acceptable. “Tough on crime” policies go beyond what is required for public safety and the rights of victims.
  3. One way to reduce incarceration rates is to end the war on drugs. Ending the war on drugs will also reduce racial discrimination because it leads to strong imbalances in incarceration rates by race, impoverishing and even destroying many black families.
  4. Abolish existing laws and practices that lead to discrimination of all types. Some laws, however, may be necessary to combat discrimination.
  5. Guarantee social safety nets through a fair and efficient system of benefits and progressive taxation – perhaps including a basic income guarantee – but also encourage private charity. Design the taxation system in such a way that it reduces income inequality.
  6. Help the poor by way of Conditional Cash Transfers.
  7. Rethink development aid.
  8. Combat malnourishment and hunger and improve the water supply.
  9. Reduce immigration restrictions. The supposed negative consequences of increased immigration are largely fictitious, and the benefits for migrants are huge. Also relax asylum rules for refugees.
  10. Improve education and healthcare.
  11. Enhance the scope of humanitarian intervention in order to avoid Rwanda style atrocities.
  12. Promote democracy, the rule of law, the separation of powers, federalism, and the separation of church and state, and improve those institutions where they already exist. Human rights are typically safer in democracies and obviously require the rule of law.
  13. Declare victory in the war on terror, but continue the capture terrorist and subject them to fair criminal trials. Abandon torture, targeted killings if alternatives are available, and extrajudicial incarceration, and limit invasions of privacy to those strictly necessary to capture terrorists.
  14. Abolish freedom-restricting laws such as those prohibiting assisted suicide and euthanasia. Relax abortion laws where necessary.
  15. Guarantee the freedom of the internet.

Now, which of these actions are realistic in the short term, and which are not? The latter part of the list, namely actions 9 to 15, seems to be the most difficult. Substantial progress is already under way for 1, 2, 4 (take the case of same-sex marriage and the repeal of DADT), 6, 7 and 8. Also, 3 may be heading in the right direction. 5 depends to some extent on the general economic climate.

It’s obviously a long list of often very difficult policies, even when we limit ourselves to those areas where progress is relatively easy. Also, in some countries, progress may be easier in some areas than in others. That’s why this list is still too general and different actors may have to choose a subset.

More on progress in the field of human rights here.

Crime and Human Rights (14): The Limits of the Law

We need rules to live together in a spirit of respect for each other’s rights, freedom and equality. We need to tell people what they can, cannot or should do in order to respect the rights, freedom and equality of others, and we need to coerce people if they don’t respect these rules.

It seems that the best way to do this is to translate these rule into laws and then to use a justice system and a police system to enforce respect for these laws. That’s obviously not the only way to do it – education, tradition, social control, incentives etc. are other ways – but it’s one that has proven to be successful (yet not perfectly successful since legal prohibition of acts and enforcement of this prohibition never completely prevent those acts and may even backfire). If that is correct, then laws and their enforcement institutions are necessary parts of modern life.

So, these are, in broad strokes, the limits of the law: laws should protect people’s rights, freedom and equality, no more, no less, and nothing else. However, once the institutions of the law and of law enforcement have been created, there’s always the possibility and perhaps even the certainty that they will be used not to protect rights, freedom and equality, but for other purposes, or for the enforcement of controversial and exotic interpretations of rights, freedom and equality. That’s one way in which the law can overstep its limits or, if you want, become corrupted. (I focus here on the corruption of the law, not the law enforcement institutions. The latter is for another time).

Quantitative limitations

But a system of law can overstep its limits in several other ways as well. The purpose of the law – rights, freedom and equality – is a limitation, but it’s a limitation that requires other limitations, for example a quantitative limitation. There’s always a tendency for the number of laws to become too large. That’s a problem because a violation of this quantitative limitation has qualitative consequences for the ability of the system of law to serve its purpose, namely the protection of rights, freedom and equality:

  • When laws become too numerous, it becomes difficult for people to know what is and is not legal. As a result, people may find that they are ambushed by the law. When people are ambushed in this way, they risk losing their freedom through no fault of their own, and that means that the system of law doesn’t perform its main function, namely protecting rights, freedom and equality. Moreover, after having endured or seen this kind of ambush, people will start doubting the value of the whole system of law. This undermines the credibility of the system, making it again difficult to use it for its intended function.
  • When laws become too numerous, the enforcement institutions will have an increasingly difficult task. Some laws will no longer be enforced, or will be enforced in an unsatisfactory or selective way, something which again destroys the credibility and hence the effectiveness of the system of law and again has consequences for the purpose of the system.
  • When laws become too numerous, it’s likely that the focus of the law will be lost. People have a limited number of rights, and there are a limited number of ways in which people can infringe on each other’s freedom and equality. Hence, the number of laws should also be limited. When there are more laws than necessary, people will be coerced for other reasons than rights, freedom and equality, and they will rightly resent this. This resentment will again be directed at the law in general, including the laws that are necessary for rights, freedom and equality.

Formal limitations

It’s not only the number of laws that can force the system of law beyond its limits. The nature of laws is also important. After all, just as a vast body of law can coerce too much, so can one very sweeping law. Laws should have certain characteristics if they are to stay within their limits:

  • Laws should be precise: they should be targeted at very specific threats to freedom, equality and rights, and not at vague threats or at threats to something else. For instance, a law that makes hate speech illegal, but doesn’t specify hate speech, is too vague. It risks coercing too much and hence destroying rights, freedom and equality rather than protecting those values.
  • Laws should also be effective: they should have a proven track record of countering specific threats to rights, freedom and equality. Otherwise they should be repealed. It often happens that laws are counterproductive: rather than countering a specific threat to rights, freedom and equality, they enhance it. For example, capital punishment for murder may make it more likely that witnesses are murdered.
  • Laws should be proportional. They should not provide a punishment for those threatening rights, freedom and equality that produces a greater threat to the rights, freedom and equality of the punished criminals (and their relatives etc.). And they should not produce other unwanted side-effects that have an impact on rights, freedom and equality. An example of a law – or better a set of laws – that creates more harm than it prevents is the “war on drugs”. Maybe this is a set of laws that effectively suppresses drugs, but in doing so it disproportionately harms rights, freedom and equality in other places (it leads to excessive incarceration of ethnic minorities).
  • Laws should not be secret, retroactive (a retroactive law is one that punishes acts that have occurred before the law came into force) or unstable (they should not change all of the time). Otherwise, it becomes very difficult for people to respect the law, creating again the risk of ambush and the consequent loss of credibility for the whole system of law.
  • Laws should not be bad law. They should not be too complex, incomprehensible or contradictory. Otherwise they will have the same effect as secret, retroactive or unstable laws.
  • And, finally, laws should be necessary. If there’s a non-coercive tool to protect rights, freedom and equality that is equally effective and proportional, then this tool should used. A law, after all, because it is coercive, is a violation of freedom. Laws can therefore only be used if they are the only available means to produce more freedom than they take away, or if they are more effective.

Content limitations

Another limitation of the law is that it can only be designed to serve rights, freedom and equality. If people want to waive or destroy their own rights, freedom and equality, the law should not force them to do otherwise. In other words, the law should not be paternalistic, although there may be room for some form of soft paternalism in the case of people who obviously don’t understand their own interests or who have a hard time acting on their interests. If paternalism can enhance autonomy, why not. I won’t develop that point in this post, however.

Some also argue that religious people, or people holding other, non-religious but substantial moral convictions that are very controversial, should avoid using those religious or moral convictions as a justification for laws. Laws should in other words be neutral in order to avoid coercing people in ways that they can never accept. I rejected this argument here, so in my view that’s not a proper content limitation of the law.

If we want to keep the law within the limits stipulated here, we have to be aware of the possible roads to corruption. First, legislators should think, in every legislative decision, about the ways in which the proposed law is necessary and effective for the protection of freedom, equality and rights. Next, they should respect some formal and content limitations, as well as quantitative ones. And finally, they should have a coherent understanding of the nature of freedom, equality and rights. That, of course, in controversial – different people will always have different views of the proper meaning of these concepts. However, democratic deliberation and public reasoning can at least guarantee majority support for a particular interpretation of this meaning, and make it possible to avoid private and self-interested meanings to sneak into the law.

What Are Human Rights? (22): Part of the Rule of Law

The claim here is not the trivial one that human rights depend on the rule of law because they can’t be enforced without it. The more interesting question is the opposite one: whether there can be a rule of law without human rights. Or, in other words, is the rule of law a necessary but not a sufficient condition for human rights?

At first sight, the answer to both questions would be “yes”. Indeed, the law can be anything, and as long as it “rules” in some way – i.e. as long as the laws are consistently enforced and not superseded by frivolous and arbitrary commands of men – one could claim that there is some sort of “rule of law”, even if the laws in question violate human rights. Civilizations had the rule of law long before the concept of human rights even existed (the Roman Empire may be an example).

Joseph Raz has famously claimed that

the law may, for example, institute slavery without violating the rule of law. (source)

Nazi Germany was also very much a law based society. (See here for example). Indeed, it can be plausibly claimed that strong and authoritarian states are better able to impose rules. That would lead to an incompatibility between human rights and the rule of law.

The fact that many if not most dictatorships make a mockery of the rule of law and of the law itself, and govern in a totally arbitrary way based on the whims of a few men rather than laws and rules, doesn’t exclude the possibility that some dictatorships respect the rule of law, and that the rule of law can indeed be the rule of very bad law, viewed from the perspective of human rights. A prima facie conclusion has to be that dictatorships can respect the rule of law and that regimes based on human rights can inhibit the rule of law: privacy protection, rules on the determination of criminal guilt etc. can make the rule of law more difficult. Authoritarian regimes can easily lift the veil of privacy in order to check for violations of the law, and are not at risk of freeing guilty people because of the presumption of innocence and the burden of proof.

The rule of law, viewed in this manner, is a purely formal concept devoid of substance: as long as the laws “rule”, we have a rule of law, no matter what the substance of those laws may be. Laws are then viewed solely as rules that guide conduct, but the direction in which they guide is immaterial. The rule of law, according to this view, should not be confused with the rule of the right law. The rule of law as a concept deals not with the content of the laws but with the way in which they are enforced and formulated.

That last word is important: the rule of law should logically be more than a system of governance in which rules are imposed by force. Imposing rules by way of force can in itself not be viewed as a system of the rule of law. It would be far-fetched to claim, for example, that a government using force to impose completely arbitrary rules that change every day respects the rule of law. The rules in question have to be formulated in a certain way; there have to be rules of legislation in order to have a rule of law.

These rules usually include the following:

  • Laws should not be imposed retroactively: the rule of law implies respect for the laws, and citizens can’t be expected to respect laws if they are imposed retroactively.
  • Laws should be made public, for the same reason.
  • Laws should be relatively permanent, clear and intelligible, again for the same reason.
  • Laws should strive to be general rules applicable to everyone, rather than commands directed at certain persons or groups; the reason for this rule of legislation is the differentiation between rule of law and rule of man.
  • Laws should not contradict each other, again for reasons of respect.

These rules of legislation differentiate laws and the rule of law from an arbitrary set of rules imposed by force. The rules of legislation are formal and don’t, at first, impose content on the specific laws generated by these rules. However, once you take a closer look at these rules of legislation, it becomes increasingly difficult to maintain that the rule of law is a contentless concept that allows the law to be virtually anything, even abject oppression. Some of the values inherent in the rules of legislation are also inherent in human rights: publicity and equality for example.

The rules of legislation also create another link to human rights: they assume free will. If rules can’t be secret or can’t be applied retroactively it’s because we want to give people the choice to change their behavior so that it complies with the law. Secret and retroactive laws are impossible according to the rules of legislation, and hence also according to the rule of law, because they are an affront to freedom. (See the work of Lon L. Fuller for a more detailed version of this argument).

Hence, freedom is an important part of the rule of law, just like publicity and equality. So it would be strange to claim that a regime respects the rule of law if its laws violate people’s freedom, equality and public activity (such as speech). That would have to be a diminished kind of rule of law. Maybe the regime in question does respect the rules of legislation and does more than impose any arbitrary set of rules by way of force. But if it does so, it sets in motion a dynamic that will ultimately lead to freedom, equality and publicity because it uses these values in its legislation (although not in its laws). Violations of human rights are initially consistent with the rule of law – correctly understood as more than any arbitrary set of rules imposed by force – but not over time, since the dynamic of the rules of legislation uses values that are likely to infuse the laws themselves rather than merely the rules of legislation. And these values will direct the laws towards human rights since they are the same as the values inherent in human rights.

For example, if you have a law that imposes slavery, this law may initially have been created with respect for the rules of legislation (for instance, it may be a public law that doesn’t criminalize behavior that took place before the publication of the law). But since these rules imply the equality and freedom of all citizens, the law in question will ultimately come to be seen as inconsistent with the system of legislation. Over time, the rule of law will become the rule of the right law.

Religion and Human Rights (22): The Proper Role of Religion in a Democracy

For me, as an agnostic, the question of the place of religion in a democracy is an important one, although I believe the question would be just as important if I held a religious belief or if I were an atheist. There’s no doubt in my mind that the full protection of human rights and civil liberties for all citizens can be jeopardized by misconceptions about the proper role of religion. Take, for example, the rights of homosexuals, the rights of non-believers or adherents of other religions, women’s rights etc.

At the most basic level, this is a problem of tolerance. We should not impose our beliefs, moral values and practices on others if these others don’t inflict harm, even if we think other people act immorally from the point of view of our religion. And neither should we discriminate people when they act or speak or think in ways that are incompatible with our own beliefs. These two prescriptions are based on the need for respect. We would show disrespect for other people if we were to force them to act according to our own beliefs. And the need for respect is, in turn, based, on the importance of freedom. Other people value their freedom to act according to their own beliefs. Let’s take two examples:

  • A Muslim father may, as long as his daughter is underage, impose certain religiously inspired rules of behavior on this daughter, and he can even hope that the girl internalizes these rules and respects them for the rest of her life. But when the girl reaches adulthood and chooses to live according to her own rules, she will be protected to do so by her human rights and civil liberties, even against the wishes of her father. The proper role of the religious beliefs of the father has reached its limit. The father should tolerate and respect (which doesn’t mean agree with) the choices of his adult daughter, and the laws of the democracy in which they live will enforce this tolerance and the girl’s freedom of choice if necessary.
  • A Catholic human resources manager in the recruitment department of the army of a democratic country, refuses to hire a perfectly qualified candidate because of her homosexuality. Again, this would be a sign of disrespect on the part of the HR manager and the law should intervene.

But the problem goes beyond the level of relations between citizens. The question about the proper place and role of religion in a democracy isn’t limited to the problem of how we treat each other in our daily lives, how we treat our wives and children, our gay or “infidel” neighbors or employees etc. In a democracy, the people translate their beliefs in legislation and government policy. Hence we should ask to what extent people can use their religious beliefs as the basis or reason for legislation.

Here I take a nuanced position between the two extremes: between a complete lack of restrictions on the role of religion in democratic legislation, and a complete exclusion of religion from democratic legislation. So the question becomes one of degree: to what extent can religion be the basis of law? When is it allowed, and when is it no longer allowed for religious reasons to be the reasons for government coercion?

I think that the problem arises when the legal coercion resulting from religious reasons violates the human rights and civil liberties of individuals, and that any religiously inspired legislation that stops short of such violations is acceptable. Some would say that even legal coercion based on religious reasons that doesn’t violate the rights of individuals is reprehensible, but I don’t agree. An argument in favor of this more restrictive approach could go as follows. Legislation based on religion automatically implies disrespect for people of other religions and for non-believers, since the religious reasons used as a basis for this legislation are likely to be exclusive to a particular religion. Only religious reasons which are sufficiently vague so as not to be exclusive to one religion can then be acceptable religious reasons for legislation. An example: charity can be an acceptable religious reason for legislation, because it’s not a reason that is exclusive to one religion, perhaps not even to religion as such. Laws regarding the sabbath, on the contrary, would not be an acceptable reason for legislation, even if it produces legislation that doesn’t violate anyone’s rights. Or the argument could be that only a law that is supported at the same time by religious reasons and non-religious reasons is acceptable, and that laws that are supported only by religious reasons are unacceptable, even if they don’t violate anyone’s rights.

I think that goes too far. Disrespect should be avoided, but I don’t see why the avoidance of disrespect should automatically override legitimate religious concerns. It’s not even clear to me that there’s necessarily disrespect involved in the use of exclusive religious reasons as a basis for legislation. It’s certainly not the case that such legislation necessarily means forcing one religion on people of other faiths or of no faith. If that would be the case, we would have legislation that violates the rights of individuals (namely the freedom of religion). And that would violate my own rule stated above.

However, legislation that is based on exclusive religious reasons does involve coercing people on the basis of a doctrine that they don’t accept. But, again, if this coercion doesn’t result in rights violations I can’t see what would be wrong with it. Laws by definition force people to do things they don’t accept or to abstain from doing things that are essential to them. I don’t see why there should be laws in any other case.

To summarize, religious people can advocate and – if they are in the majority – implement laws on the basis of their own, exclusive religious reasons, as long as the human rights and civil liberties of all are respected. A religiously inspired law banning same-sex marriage would therefore not be acceptable; a law instituting a religious holiday on the contrary would be acceptable. In the words of Habermas:

The liberal state must not transform the requisite institutional separation of religion and politics into an undue mental and psychological burden for those of its citizens who follow a faith. (source)

On the other hand, religious people should also refrain from imposing a burden on the rights of their fellow citizens.

Some would say that even my rule is too restrictive on religion. For religious people, religion is not only a personal and private conviction but also the law of humanity. Forcing them to forsake the legal implementation of their religious views means taking away their identity, forcing them to be what they don’t want to be. Their religious beliefs are political beliefs and always trump opposing political beliefs. It’s intolerable for them to be forced not to implement their beliefs by way of legislation, or to submit to political decisions that are not based on their religious reasons. It’s indeed a good question: can religious people really accept democracy, given that God cannot be in the minority and God’s commands are absolute and trump opposing majority decisions? Democracy seems to be unacceptable from a religious point of view. However, catering to this view would mean forfeiting democracy, majority rule, the free choice of others, respect for others, freedom of religion, and human rights, and replacing all this by absolute theocracy. I don’t think that’s a price many are willing to pay, and not even many religious people as I argued here.

The Ethics of Human Rights (3): Civil Disobedience

An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law. Dr. Martin Luther King, Jr.

Civil disobedience is non-violent and public disrespect for a law which one considers to be unjust, accompanied by a willing acceptance of the consequences of this disrespect. The purpose of civil disobedience is to highlight the injustice of a law and hence to work for the abolishment of the law. The assumption is that actions which highlight an injustice can contribute to its abolition, which is an reasonable assumption at least in a democracy. In a democracy, there should be other procedures to abolish injustices, such as representation, free speech, freedom of assembly and association etc., but no democracy is perfect and therefore a more extreme measure such as civil disobedience may be necessary. The American Civil Rights Movement, which operated in a manifestly imperfect democracy, was an example.

However, civil disobedience is a dangerous thing. Laws are important, because without laws and judges and police forces to protect them, human rights are just moral claims, unenforceable and at the mercy of those who are stronger and more powerful.

So you have to be careful when allowing yourself to defy the law. Civil disobedience is not the same thing as the freedom of conscience. You do have the absolute legal right to believe what you want and what your conscience forces you to believe. But it is another thing to be able to act according to your conscience and to break the law because of your conscience; or not to act because of your conscience, as is often the case with conscientious objectors. If you state that everything, even a breach of the law, is allowed as long as it conforms to your conscience, then you go down a very dangerous path.

The freedom of conscience is something different from the right to do or not to do something because of objections based on conscience. You may be forced to do something that goes against your conscience while retaining your freedom of conscience and your beliefs about wrong and right. You can even force yourself to act against your conscience, perhaps because of a sense of duty or because of respect for the rule of law. You only lose your freedom of conscience when you are forced to believe something, which can only happen in extreme circumstances.

Conscience as the ability to know wrong from right is a kind of self-legislation. But because this is fallible (in German they say, “das Gewissen ist kein Wissen”, conscience is not knowledge), and more fallible than common legislation (more fallible because you are alone – two people know more than one – and because you miss the opportunity to learn from discussion and arguments), it should not determine actions when it is incompatible with the laws that are valid in a well-functioning democracy. Only if the external law, as opposed to the internal law, is clearly dysfunctional or unjust as in the quote above, can there be a reason to appeal to your conscience and engage in civil disobedience.

However, civil disobedience is an individual choice, and can it be allowed that individuals decide for themselves whether a system of law is “clearly dysfunctional”? It is dangerous at least, which is why civil disobedience should be an emergency measure only. The risk of anarchy can sometimes convince us to accept a supposedly dysfunctional law or judge, even if our conscience tells us to rebel. Civil disobedience should only be tried when everything else has failed.

Why Do We Need Human Rights? (8): The Harm Principle and the Freedom to Damn Yourself

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. John Stuart Mill

This is the so-called “harm principle“, for which Mill has become famous. In other words, people have the right to “damn themselves”, as long as they don’t hurt others in the process. If being an alcoholic or drug addict is part of a person’s vision of the good life, and if it doesn’t make him beat his wife or children, steal from others etc., then no government should intervene.

Obviously, this is limited to people who act rationally and are sane. Who, in other words, know the consequences of their actions, and then primarily the consequences for themselves. In some cases it must be possible to ignore someone’s desires for the sake of his or her own well-being. Some people have to be coerced for their own good because they fail to understand and to pursue their good or their interest autonomously. I’m thinking of children for example. No one would sincerely believe that we would hurt their freedom if we allowed them to engage in unsafe sex or to abandon their studies. They cannot assess the consequences of their actions and the harm they inflict on themselves.

In general, however, we should allow people to decide for themselves, to determine their own way of life and their own interests, as long as their choices don’t impact other people. We should do so even if we believe that the people in question have chosen a wrong, inferior or offensive way of life and harm themselves as a consequence of the way in which they understand their interests.

We can, of course, advise people and try to convince them, but we should be very careful if we want to impose a way of life on people, no matter how reasonable and beneficial this way of life seems to us. What is best for me is not necessarily best for everybody. Most people value the possibility to decide for themselves. It is much more dangerous to enact laws that only deal with people’s own lives than it is to enact laws that deal with social relations.

Even if the state can encourage or force people to pursue the most valuable ways of life, it cannot get people to pursue them for the right reasons. Someone who changes their lifestyle in order to avoid state punishment, or to gain state subsidies, is not guided by an understanding of the genuine value of the new activity. … We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. A perfectionist policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka

That is why we can only propose the “good way of life” (if we have an idea of what it is) and argue for it (and we need democracy and human rights to do that). Except in very exceptional cases, we should not impose this way of life and we should accept other ways of life, not because these ways of life are better, but because they are other people’s autonomous choices. The good way of life should be led from the inside. It should be a choice, a conviction, not something that is imposed from the outside. If your life is not your choice, it can never be good.

What is Democracy? (18): Self-Government and Self-Legislation

Self-government (the equality of rulers and ruled, government of the people by the people instead of government of the people by an elite sprung from the people) is an important value because it gives people control over their own lives. Most people want to be masters of their own lives and want to be involved in the creation or transformation of the conditions and circumstances of their lives.

These conditions and circumstances include, of course, legislation. You have self-control and self-government only when the laws you have to obey are laws that you agree with; “quod omnes tangit, ab omnibus approbetur”, what concerns all has to be approved by all. And the best way to have this kind of approval is to allow the people to make the laws themselves or at least to allow them to participate in the process of legislation, for example by way of the election of the legislators.